No Easy Answers to Charges of War Crimes in Gaza

Experts on both sides say there were, but proving it will be hard and prosecuting even harder

A three-day cease-fire began in Gaza Tuesday, while Israeli and Palestinian delegations traveled to Cairo to negotiate peace.

But looming over negotiations to end the conflict is the ugly specter of war crimes, which both Israel and Hamas have been accused of committing. On July 23, Navi Pillay, the U.N.’s High Commissioner for Human Rights, suggested that attacks on civilians by both Israel and Hamas may have violated international law “in a manner that could amount to war crimes.”

That’s no idle charge — war crimes are breaches of international humanitarian law defined by the Geneva Conventions as:

“Wilful killing, torture or inhuman treatment, including… wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile power, or wilfully depriving a protected person of the rights of fair and regular trial, …taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.”

Investigating and proving this is a lengthy and complex process that could take many months. Nevertheless, experts on both sides of the conflict have already drawn their own conclusions.

“It is fairly clear that Hamas has committed war crimes as a matter of systematic [authorized] policy,” says Abraham Bell, Professor of Law at Bar-Ilan University in Israel. “Hamas has used child soldiers, human shields, indiscriminate firing and weaponry incapable of discriminate firing during the conflict. It has also committed perfidy – using protective objects in an attempt to shield combatants – such as storing rockets in schools,” he adds.

Jack Guez—AFP/Getty ImagesA picture taken from the southern Israeli border with the Gaza Strip shows the trail of a missile launched by Israel’s Iron Dome defense system as it intercepts and destroys a rocket launched from Gaza into Israel on August 4, 2014.

Though aware Israel has been similarly accused of war crimes, Bell is unconvinced. “It’s hard to argue that there are significant war crimes going on from the Israeli point of view,” he comments. “The IDF has lawyers who accompany and advise commanders on missions.”

Israel’s detractors might argue that these legal experts could be more effective: The U.N. places the most recent death toll in Gaza at over 1,200, most of them civilians. Bell says civilian deaths are not necessarily war crimes. “You could end up with a lot of civilian casualties and have acted in accordance with the law,” he says. “It’s expected that there are going to be a lot of civilian deaths in urban warfare.”

Not on this scale, says Simon Natas, partner at ITN solicitors, who has worked with the UK-based organization Palestine Solidarity Campaign.”There are two enormously powerful inferences to draw from the extraordinarily high number of civilian casualties caused by Israel. Either it’s targeting civilians or its attempts to distinguish them from combatants is wholly inadequate,” Natas says. “Both constitute war crimes.”

“We know that Israel has directly targeted non-combatants… I don’t think there is any doubt that they deliberately attacked civilian targets such as mosques, hospitals and the Islamic University in Gaza,” he says.

Natas further claims that the extensive shelling — which, he says, “has characterized this conflict” — is the real “indiscriminate firing” Bell accuses Hamas of carrying out. “There are vast areas where all houses have been flattened,” Natas says. “It’s simply not possible to repeatedly fire these types of shells and not risk disproportionate civilian casualties.”

Though Israel says it warns civilians of attacks by dropping leaflets, leaving pre-recorded messages, and firing warning missiles, Natas is unimpressed. “A civilian is entitled to say ‘I want to remain in my home’ and it doesn’t mean they can be killed for exercising that right.”

Natas concedes that Hamas, too, fires indiscriminately at Israeli civilian areas but adds: “They don’t have the sophisticated technology to only hit military targets… they use extremely primitive weapons.” That lack of discrimination is not deliberate, he says, but due to a technical lack of control when retaliating against a more powerful, national military. That militant organizations can be accused of war crimes when they’re forced to resort to crude weaponry for self-defense, he says, is “an issue that international law needs to get to grips with.”

Accusations of war crimes are easy to come by, but prosecutions of them are not. While the UN Human Rights Council conducted a war crimes inquiry into a three-week conflict in Gaza in 2008-9 that concluded there had been serious violations on both sides, it had no powers of enforcement. For prosecution to actually go ahead, the domestic country must first have investigated its own conduct.

Natas says that Israel’s analysis of its own actions during war has never been carried out with sufficient rigor or impartiality, and believes it will be much the same after Operation Protective Edge. So, he says, “two NGOs in Gaza – al-Mezan and the Palestinian Center for Human Rights – will be impartially collecting evidence of war crimes along with the U.N.”

Though Natas says the Gazan NGOs will also report on any crimes committed by Hamas, Bell says the militant group won’t carry out an internal investigation into its own conduct either. “A terrorist organization is not going to investigate its own war crimes,” he says.

Marco Longari—AFP/Getty ImagesPalestinians remove pieces of rubble from a house hit by an Israeli airstrike in the Shati refugee camp in Gaza City, on August 4, 2014.

Once the internal process has been completed, the International Criminal Court (I.C.C.) can intervene if it thinks the process has been unsatisfactory. However, the court doesn’t have jurisdiction in Israel or in Palestine, meaning that it can’t prosecute them without U.N. Security Council referral.

Israel refused to ratify the I.C.C.’s treaty, the Rome Statute, in 1998, and though Palestine is keen to join the treaty after being declared a non-member state by the U.N. General Assembly in 2012, Natas says it’s under pressure from Israel, the U.S. and the U.K. to stay away lest it tries to prosecute Israeli officials. The U.S. also voted against making Palestine a non-member state.

Two other options remain. The U.N.’s Security Council can request an I.C.C. investigation or an independent country that has universal jurisdiction can prosecute individuals for war crimes. Universal jurisdiction is possessed by 166 states, who, according to Amnesty International, “have defined one or more of four crimes under international law (war crimes, crimes against humanity, genocide and torture) as crimes in their national law.”

Both Natas and Bell agree that the former looks unlikely. Bell thinks the U.N. Security Council won’t target a Palestinian military group whilst Natas says that the U.S., Israel’s strongest ally and a permanent member of the council, would veto any attempt to take Israeli officials to the I.C.C.

However, prosecution of Israel or Hamas could still happen in one of those 166 states. “It remains a distinct possibility that the prosecutions could happen in another country,” says Natas. “It’s just a question of them having the will and the political power.”

Any attempt to prosecute either party would cause huge international ramifications, but it likely wouldn’t come any time soon. Any war crimes inquiry would need to come after the conflict has drawn to a lasting halt, and a domestic investigation has been carried out — and right now, less than a day into a shaky cease-fire, what everyone is hoping for is peace.

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